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AN 



OEATION 



UELIVERED BEFORE THE 



MUNICIPAL AUTEfOKITIES 



i^\ <r 



CITY OF BOSTON, 

JULY 4, 1859, 
BY GEOEGE SUMJS^ER. 



RTCPKINTED BY ORDER OF THE COMMITTEE ON PRINTING. 



BOSTON: 

ROCKWELL AND CHURCHILL, CITY PRINTERS 

No. 39 ARCH STREET. 
1882. 



\h 



AN 



OKATION 



DELIVERED BEFORE THE 



MUNICIPAL AUTHORITIES 



CITY OF BOSTON, 

JULY 4, 1859, 
BY GEORGE SUMiNER 



REPRINTED BY ORDER OF THE COMMITTEE ON PRINTING. 



BOSTON: 
ROCKWELL AND CHURCHILL, CITY PRINTERS, 

No. 39 ARCH STREET. 

1882. 



iss'iS 



By trvamtvi 

JAN 15 1916 




Honored by the request of the City Council to speak, in 
the name of Boston, on the Fourth of July, it seemed to me 
proper on that occasion to discuss some of our obligations, 
as Americans, to other nations and to ourselves. 

The facts then stated, which bear upon the aid given our 
country in its Revolutionary struggle, were verified by the 
examination of original documents in the archives of the 
State Department at Washington, of the French Ministry 
of Foreign Affairs at Paris, and of the Spanish government 
at Seville and Madrid ; and also of papers in the hands of 
the executor of Caron de Beaumarchais, the agent of the first 
benefactions of France.* 

In giving to Spain the credit of having projected the 
Armed Neutrality of 1780, 1' am awarfe; that I may seem 
to have diftered from many writers on International Law. 
The statement, however, was not lightly made, nor without 
documentary evidence to sustain it. 

Of what was said concerning the position of European 
countries, I have nothing to alter on account of the truce of 
Villafranca. 

As regards recent events in our own country, speaking in 



*As the i-ecent biographer of Beaumarchais, M. de Lomenie, has charged the 
Unitecf States with ingratitude to him, I take this opportunity publicly to state, that 
having drawn the attention of his executor to the first accusations of M. de Lomenie, 
in the Revue des Deux Mondes, that gentleman declared to me, that every just claim 
of Beaumarchais has been " fully, largely, and generously paid by the United 
States ; " and this declaration he ofiered to repeat, in his official capacity, before a 
Notary Public. 



. the name of a law-abiding people, I felt it my duty to raise a 
warning voice against conduct which the wisest jurists in the 
land have denounced, as tending to bring the triliunals of 
the law into disrespect. Speaking in the name of those whose 
ancestors made sacrifices to secure liberty founded on law — 
and who l)elieve an essential guaranty of that liberty to con- 
sist in the separation of the legislative, executive, and judicial 
functions — I should have been recreant to my trust did I fail 
to speak of acts which tended, if not to confound those func- 
tions, at least to destroy their harmonious balance. Venerat- 
ing the Constitution, I could not stand duml) in presence of 
the earnest a[)peal of the Senior Judge of the Supreme Court 
— the com^^anion upon the bench of Marshall — Mr. Justice 
McLean, who, alarmed at the usurpations of the Chief 
Justice, and other of his junior colleagues, exclaimed in the 
Dred Scott case : " Have the impressive lessons of |)ractical 
wisdom become lost to the present generation ? If the great 
and fundamental princii^les of our Government are never to 
be settled, there can be no lasting prosperity. The Consti- 
tution will become a floating waif on the billows of popular 
excitement." Yielding to no one in respect for our judicial 
system — and keenly alive to the importance of that respect 
being universal — I felt it my duty to invoke the supreme 
tribunal of the land — the Sovereign Public Opinion of the 
country — to aid in awakening a portion of the Judiciary to 
a sense of self-respect — the l)a8is of respect from others. 

Jefferson, in a letter to Edward Livingston, of 25th March, 
1825, says : " Your code for Louisiana will range your name 
with the sages of antiquity. One single object will entitle 
you to the endless gratitude of society ; that of restrainiiuf 

judges from usurping legislation. . . . Experience has 
proved that impeachment in our forms is completely inefl5- 
cient. A regard for reputation and the judgment of the 
world may sometimes be felt where conscience is dormant, 
or indolence inexcitable." 



Story also recognized as the High Court of Appeals of our 
country " its intelligence, its integrity, its learning, and its 
ruanliness." 

In addressing myself to these, I followed my convictions 
of duty ; being true to which I felt that I was true to Bos- 
ton, — I was happy, moreover, in the certainty that even so 
humble a voice as my own, when speaking for the purity 
and dignity of the Judiciary, had the cordial support of the 
members of every " healthy political organization " in the 
Eepublic. G. S. 

Boston, 1st August, 1859. 





ORA 



Eighty-three years have passed siniSe^ tbes^legates of 
thirteen feeble colonies proclaimed the immortal truths of 
that Declaration to which we have just listened. This act, 
pregnant with consequences to all mankind, stands in 
history as the record of the birth of a new nation. 

In 1776 the great powers of Europe were at peace, and 
England was at full liberty to throw on our shores the whole 
force of her arms. 

In the great contest which ensued — a contest for self- 
government and for the equal rights of man — perils were 
encountered and sufferings endured which we, calmly enjoy- 
ing their fruits, remember with gratitude to the men who 
toiled for us, and with fealty to the principles which they 
proclaimed. 

The struggle was long and unequal ; and when the enemy 
succeeded in gaining possession of New York, the timid 
began to falter. All eyes were now turned to Europe. 
Delegates had been already despatched to seek the assistance 
of France, and their hopes were not disappointed. One 
million of francs were given from the French treasury ; 
cannon and military stores furnished from the arsenals of 
France ; other -stores to the value of a million of dollars 
placed in colonial ports accessible to our vessels ; and a 
series of friendly acts commenced which, on the 6th of 
February, 1778, were consummated in a treaty of alliance, 
and in a declaration by which France bound herself to make . 
no peace with P^ngland until the independence of the United 
States was fully recognized. 



8 



But it Avas not France alone AA^hich came to our aid. Dur- 
ing that summer of 76, one of those brave men Avho were the 
creators of the naAal glory of our country, Capt. John Lee, 
of ^hirl)leheacl, cruising under a commission from Congress, 
haA ing takeii and sent home fiA e A^aluable prizes, and finding 
it necessary to refit and ol)tain supplies and munitions of 
AA^ar, entered the port of Bilbao, in Spain. The captains of 
tAA^o of his prizes and a part of their crcAAs AA^ere on board. 
These officers immdiately protested against their capture, 
and had Capt. Lee arrested on a charge of piracy. The 
local authorities sent the documents of the case to Madrid, 
together AAitli the commission granted by this neAA^ and un- 
known power. Here AAas a critical juncture in our affairs. 
On the decision of the Spanish Ministry depended, not alone 
the fate of Capt. Lee, but Avhether some of the most impor- 
tant ports in Europe should be opened or closed to our 
cruisers and priA'ateers. The English Minister in Spain 
brought all his influence to bear against us. At this moment 
the Declaration of the Fourth of July reached Madrid. 
The (Complaint against Capt. Lee AA^as dismissed ; supplies 
for his ship, and aid in repairing it were furnished ; and pub- 
lic declaration made that in Spanish ports the neAv flag of 
America Avas as free and as Avelcome as Avas the old and 
haughty flag of England.* 

This open act of friendship had been preceded by another. 
On the 27th June, 1776, the Spanish Minister of Foreign 
Affairs sent to Count Aranda, Amliassador of Spain, in 
Paris, one million francs, as a free gift for the American 



* Cooper, in his Naval History of the United States, seems entirely to have 
overlooked this interesting episode. Captain Lee was a bi'Other of Colonel AA^illiam 
I^ee, for many j-ears Collector of Salem, the same to whom AA^ashington proposed the 
place of Adjutant-General of the Revolutionary Army, before oifering it to Colonel 
Timothy Pickering. Silas Deane, in his despatch of 17th October, 1776, to the Com- 
mittee of Secret Correspondence of Congress, erroneously describes Captain Lee as 
of Xewburyport. — See Diplomatic Correspondence of the Revolution, Vol. L, 
p. 53. 



9 



Colonies;* and on the lltli August this million was paid 
over to the agent, with whom Silas Deane and Arthur Lee, 
as delegates of Congi-ess, Avere in treaty for the shipment of 
arms and supplies. 

But this was not all. Cargoes of military stores were 
sent to us from Bilbao ; then the hint was given that three 
thousand barrels of powder stored at New Orleans were at 
our service ; | the port of Havana was opened to us on the 
same terms as to France, and the further hint given that if 
an American ship should look in there occasionally, it would 



* I have seen the despatch of tlie ^larquis of Grimahli to Count Aranda, enclosing 
this draft for a million francs. 

tThe despatches of Oliver Pollock, the a;^cnt of Congress at New Orleans, during 
the war, which are in the archives of the Department of State at AVashington, throw 
the fullest light upon what was doneh}^ the Spanish government in Louisiana. 

As early as August, 1776, a cai'go of powder was given by Governor Unzaga, 
despatched by Pollock, and arrived in safety. In January, 1777, Don Bernardo de 
Galvez succeeded Unzaga as governor. 

" That worthy nobleman," writes Pollock, " immediately made a tender of his 
services, and gave me the delightful assurance that he would go every possible length 
for the interest of Congress. 1 should be guilty of injustice did I not declare that 
this generous promise was honorably fulfilled ; and I should bely my own heart if I 
did not on this, as on every other pi'oper occasion, express my grateful sense of the 
services he has rendered to the United States. The first instance of them was retaliat- 
ing the seizure of an American schooner in the lakes, by the seizui-e and confiscation 
of all British vessels between the Balize and Manchac, . . . and by an assur- 
ance that the port of New Orleans should be open and free to American commerce, 
and to the admission and sale of prizes made by their cruisers." 

Pollock not only sent military stores presented to Congress by llie Spanish governor, 
but also made purchases of supplies, amounting to $05,814, for the State of Virginia, 
and sent them by batteaux to diifcrent points on the Ohio. His drafts, authorized bj'' 
Governor Patrick Henry, came back protested, placing him in the greatest embarrass- 
ment, from which he was generously relieved by Don Bernardo de Ottero, the 
Spanish Treasurer of Louisiana. 

The course of events at New Orleans, under the brilliant young governor, 
Bernardo de Galvez, whose name a citj' of the United States now bears, is described 
in papers in the Archivias de las Indias, and has more than the interest of romance. 
A somewhat tardy recognition of his aid to us is found in a despatch written by order 
of Congress on the 21st November, 1781. Tiiis despatch, signed by Robert Morris, 
addressed to General Don Bernardo de Galvez, says : — 

" I am directed by the L^nited States to express to your Excellency the grateful 
sense they entertain of your early efforts in their favor. Those generous eflbrfs gave 
them so favoraljle an impression of your character and that of your nation, that thev 
have not ceased to wish for an intimate connexion with vour countrv." 



10 



find the door of a certain magazine open, and somethino; in 
it useful to the Colonies. 

Nor was this the end of Spanish favors. Blankets for ten 
regiments were sent as a present to Congress, through John 
Langdon, of Portsmouth ; ship loads of stores were 
despatched through the house of Gardoqui, at Bilbao : 
and when John Jay appeared at Madrid as INIinister of the 
ncAV States, without any provision being made by Congress 
for money to })ay even his house rent, another gift of 
$150,000 was made to him for us. 

More yet. Though the declaration in regard to Capt. 
Lee was the earliest act of recognition by any power except 
France, Spain abstained from making a treaty with our 
jNIinister, for the ver}^ excellent reason that to do so would have 
been tantamount to a declaration of war against England, for 
which she was not prepared. But that eminent man who, on 
the 19th of Felu'uary, 1777, took the reins of power in 
Spain, — Florida Blanca, — -was not idle. He immediately 
connnenced building new ships and arming those already built 
— the annual expenses of the navy, usually about one hun- 
dred million reals, or five million dollars, were suddenly 
raised to twenty million dollars — and, in the spring of '79, 
thirty-six ships of the line, mounting more guns than any 
fleet she ever had, being ready for sea, she declared war 
against England. This immense fleet, of which seven were 
three deckers, of 100 to 120 guns (our solitary three-decker, 
the Pennsylvania, has never yet got to sea), this inunense 
fleet joined the French fleet, sailed to attack the conmion 
enemy, and during that and the succeeding year intercepted 
the troops and supplies which had been sent to aid in our 
conquest. 

Florida Blanca did not stop here, but, while engaged in 
his na\al preparations, made a treaty with the Emperor of 
Morocco which closed his ports to the English. He also 
opened relations with Hyder All in India, and fomented the 



11 



war which that powerful prince maintained against England. 
Benjamin Rush, writing shortly after to General Gates, says, 
" Heaven prosper our allies ! Hyder Ali is the standing 
toast at my table." Florida Blanca did not rest content with 
this, but used all the wiles of diplomacy and all the force of 
Spain, to make difficulties for England in every part of the 
globe. When we are disposed to stretch the hand of covet- 
ousness toward any possession of now weakened Spain, let 
us remember the helping hand she gave to us in our hour of 
suft'ering and of peril. 

But the labors of Spain did not end with this. England, 
driven to desperation, used all her arts to draw the northern 
powers into her alliance, and with Russia succeeded so well 
that orders were issued to lit out fifteen ships of the line at 
Croiistadt, and the intimation was given by the Empress 
Catharine to Sir James Harris, afterwards Lord Malmesbury, 
that this fleet would soon be ready to aid England in her 
contest.* British Ministers announced the joyful fact, and 
one of their journals, even before the ice was open in the 



* Ou the 5th Nov., 1779, George III. wrote to the Empress Cathariue : " The lively 
interest which yoii take in all that concerns Great Britain demands my thanks. In 
this, as on so many other occasions, I have admired the greatness of your talents, the 
extent of your knowledge, and the nobility of your sentiments. . . . The designs 
of my enemies will not escape your penetration. . . . The use, or the simple 
show, of a part of your naval force, would restore and assure the repose of all Europe 
by dissipating the league which is formed against me." 

Ou the lltli January, 1780, " another sop " (to use the language of the 3d Earl 
Malmesbury, in Vol. I., i^. 269, of his grandfather's writings), "was given to the 
empress." On the 19th .January, Sir James Harris handed to Prince Potemkin a 
memoir, written to show that, should the allies prevail against England, America 
would supply France with hemp, pitch, timber, etc., to the detriment of Russian 
trade. 

" On the 22d February, 1780," says Harris, " Prince Potemkin sent for me, and with 
an impetuous joy said, ' I heartih^ congratulate you; orders will be given to arm fifteen 
ships of the line and five frigates ; they are to put to sea early in the spring. . . . 
It is entirely owing to what you have advanced. . . . Your nation may consider 
themselves as having twenty ships added to their fleet. . . . I am just come from 
the empress ; it is by her particular orders I tell it to you.' He ended by desiring me 
to despatch my messenger immediately, expressing his impatience for this event being 
known in London." — Malmesbury, Diaries and Correspondence, I., 279. 



12 



Baltic, declared that the Kussiaii fleet had already arrived at 
Ply mouth. 

In one week all this was changed ; and there siiddenly 
appeared, in the spring of 1780, the important declaration of 
Russia that led to the armed neutrality, which has been 
called b}^ writers on international law, " the charter of the 
liberty of the seas." By this the empress declared that her 
fleet was fitted out, not to aid England, Init to maintain the 
principles : that free ships make free goods — that the 
neutral flag covers enemies' property — and that no blockade 
which was not maintained ]>y an etiective force, no blockade 
made merely by the London Gazette, would be recognized as 
valid. 

John Adams, then Minister at the Hague, saw at once 
the whole force of this step, and, in a despatch to Congress, 
said : " A declaration of war against England, on the pai-t 
of Russia, could not have been more decisive," — and again, 
"the pretended preeminence of the British flag is now 
destroyed." "Russia now will never take part with Eng- 
land, and all the maritime jjowers must either remain neutral 
or join against her." 

In the House of Lords a wail of despair was set up. " I 
shudder," said tli-e Earl of Shelburne, " Avhen I think of 
this Russian manifesto ; by it the independence of America 
is consummated;"* and Lord Camden declared that "the 
queen of the seas was deposed, and her sceptre fallen ! " 

Desperate efibrts were made by British Ministers to meet 
the emergency. Appeals were addressed to Denmark and 



*"The doctrine," said Earl Shelburne, "of 'free ships, free j^oods ' at once 
destroyed the law of nations as it had remained for many centuries; but tliat was not 
all; it must terminate in the ruin of Britain, at least in the overthrow of her naval 
power. ... If France and Spain could transport their property to and from 
the western world in free because neutral bottoms, it was to the last degree ridiculous 
to say or believe that Great Britain could possibly be able to cope with the united force 
of the House of Bourbon. . . . Then farewell foi-ever to the naval power and 
glory of Groat Britain ! " — Parliamentary History, XXI., 629 ei seq. 



13 



Sweden, but without effect; and, during this year, 1780, 
Sweden, Denmark, and Holland, joined in the league with 
Russia, which was in its effects a league of hostility to 
England. Holland also soon joined in the war ; so that on 
one side stood England solitary and alone, — -on the other, 
using all their forces against her, the United States, France, 
Spain, Hyder Ali, Holland ; while all the northern powers 
were armed, nominally neutral, ])ut really hostile to her 
autocratic pretensions. 

One of our wisest statesmen, John Adams, exclaimed, a 
few years later : " We owe the blessings of peace not to the 
causes assigned, but to the armed neutrality." And Avho 
was the real author of the armed neutrality ? Who conceived 
that act, and who, by his ingenuity and indeftitigable perse- 
verance, led Eussia, and with her the northern powders, to 
adopt it? — Florida 131anca, the Minister of Spain. And to 
him and to his country I here render the honor, with all the 
more pleasure that this has not usually been done, and that 
the documents which establish their claim to it are in my 
possession. 

For such aid as the armed neutrality gave us — again we 
have to thank Spain. 

With all this inequality of force the war still went on. 
Constant efforts were made by England to induce the Colo- 
nies to return to their allegiance ; and, to their shame be it 
said, men were found ready to listen to her propositions, — 
men who, seduced by the hope of rewards, and by the prom- 
ise of office for themselves or for their sons, consented to 
sneer at and to deny the principles of the Declaration. It 
was after intercourse with such men th.it the intelligent 
agent of one of our allies wrote home to his government that 
there was more real enthusiasm for American liberty in the 
smallest cafe in Paris, than in a large portion of the society 
which he met. 

Again and again were terms offered by England to Spain 



14 



and to France, ])ut the constant reply was, a refusal to treat 
until we were free. 

Peace and freedom were at lensftli secured ; and from that 
time, through various vicissitudes and difficulties, our 
country — 1)y confidence in democratic principles, by faith 
in the people, and by the spirit of mutual forbearance and 
charity among them — has gone on prospering and increas- 
ing, till in material force it stands among the mightiest ; and, 
did we but always act up to the immortal truths of the Dec- 
laration, would, in mo)'al force, be the miiihtiest of the earth. 

"While the Old World, to which we turned for succor against 
our unnatural parent, is echoing to the clang of arms, and 
hostile legions stand arrayed for combat. 

We may live securely in our towns; 

We may sit 
Under our vines, and make the miseries 
Of otlicr nations a discourse for us, 
And lend them sorrows ; — for ourselves, we may 
Safely forget there are such tilings as tears. 

But it is not in man to be indifferent. The enduring sym- 
pathies of our nature demand an object ; and, besides, our 
early ties to France must make lis feel a special interest in 
her actions and destiny. \Miat, then, is the object of the 
war in which she is engaged, and what responsil>ility have 
we in the contest? 

The actual war between Italy and France on one side, and 
Austria on the other, is but the continuation of our own 
struggle on another field — the struggle for independence, 
equal rights, and self-government. How far these ma}' be 
secured by the present contest is very uncertain ; but there 
is no uncertainty in this, that our warmest sympathies are due 
to all who strive for them. 

In the present case these sympathies are augmented by 
a remembrance of all we owe to Italy — that beautiful 



15 



country which the Apennines divide, the Alps and seas 
surround — Italy, which has given us so much of all that 
adorns and elevates life ; the home of art, of science, of medi- 
cal skill, of political knowledge; of Galileo, Raflael, Michael 
Angelo, of Fallopio, and of Volta ; the land which in 
modern times has given us the earliest epic poet, Dante ; the 
great lyric poets, Petrarch and Filicaia ; the earliest 
novelist, Boccacio ; the first philosophical historian, Machia- 
velli ; and the foimder of the philosophy of history, Vico, 
whose great mind has brought to the development of political 
science and the laws of the moral world the same precision 
that Galileo had brought to those of the material world. 

To Italy we owe the mariner's compass, the barometer, 
book-keeping, the telescope applied to astronomy, the calcu- 
lation of longitudes, the pendulum as a measure of time, the 
laws of hydraulics, the rules of navigation ; and to Italy we 
owe both Columbus, who discovered, and Amerigo Vespucci, 
who gaA^e his name to our country. 

To Italy we owe also some of the most important lessons 
of political philosophy. Her republics of the middle ages 
were based on the three great principles : 

1st. That all authority over the people emanates from the 
people. 

2d. That power should return at stated intervals to the 
people. 

3d. That the holder of power should be strictly reaponsi- 
hJe to tlie people for its use.* 



* The whole system of Italian liberty is represented in these three axioms. In 
fact, the Italian Republics were freer than those of Germany, than the imperial and 
Hanseatic cities, than the Swiss Cantons, than the United Provinces, perhaps even 
than the republics of antiquity. All these bad sought, not the security, but the sov- 
erei<i:nty of the citizens ; not to protect the citizen aj^jainst the government, but to 
create a government to the powder of which, with a blind and unlimited confidence, 
they neglected to fix any bounds. — Sismondi, Histoire des RepuMiques Italiennes, 
XVI., 394. 



16 



To those republics we also owe the practical demonstra- 
tion of the great truth, that no State can long prosper or 
exist where intelligent labor is not held in honor, and that 
labor cannot l^e honorable where it is not free. 

Our sympathies are augmented by a remembrance of all 
this, and by the natural horror inspired Ijy Austria, — to 
whom civilization for three hundred and thirty years owes 
nothing, — whose whole career, both at home and abroad, 
has been a series of blackest crimes against the political 
rights of States, and the individual rights of man, — and who 
is now under the despotic control of an emperor, himself a 
deplorable example of the union of youth and cruelty. 

But there are some — hap})ily their number is small — 
who, with no f:iith in the people, look with indifference upon 
their efforts, — and others who try to cloak the seltishness and 
imbecility with which nature has endowed them under an 
assumed superiority over the people of other countries, — 
who tell us that other nations are not fitted for free institu- 
tions, — .who seem to think that they have a patent for 
freedom, and an exclusive right to enjoy it, — that they are 
God's chosen people, and that all others are made only to be 
ruled by tyrants. 

Others, again, who ha\e a sense of natural right, and 
common-sense besides, but whose natures are not hopeful, 
point to the example of France, and in her failures to main- 
tain a stable repul)lican government tind, as they imagine, 
the justification of all their misgivings. As the events now- 
passing in Italy must produce a recoil in France, and as the 
pow^er of self-government in Italians will by some be judged 
of by that exhibited by the French, it may l)e well to look 
for a moment at this. 

It is only stating what many wise French writers have 
admitted, that their Kevolution of 1789 was brought on by 
our owai. Before 'TO, the labors of Fenelon, Montesquieu, 



17 



Tiirgot, and other French philosophers, had developed ideas 
upon the rights of man and the science of government, 
which, to this day, stand as the landmarks of an advancing 
civilization. They had all asserted the natural rights of man, 
and all recognized that nations had rights flowing directly 
from these, and not drawn from old charters or from musty 
parchments. AVith this there was, on their part, a large and 
generous appreciation of the relations which should subsist 
between diti'erent countries. 

Montesquieu had laid down the proposition, for which he 
is sharp 1}^ attacked by Lord Brougham, that "the whole 
system of international law is a set of ob\ious corollaries to 
a maxim in ethics — that in war nations should do as little 
injury, and in peace as much good, to each -other, as is con- 
sistent with their individual safety." 

Turgot, the great statesman, whose Latin inscription for 
a memorial of Franklin* has been adopted by the City of 
Boston — and who may be called the father of free-trade — 
Turgot had labored for three great objects : 

1st. To check religious intolerance. 

2d. To reduce, and finally suppress, standing armies. 

3d. To establish free trade. 

And the w hole political code of this hard-headed, practical 
statesman and successful financier may be summed up in his 
declaration, that " when called upon to decide if any measure 



* Turgot's first inscription was in French verse : 

Le voila ce mortel dont I'heureuse industrie, 
Snt enchainer la Foudre et lui donner des loix_, 
Dont la sagcsse active et I'eloquente voix, 
D'un pouvoir oppressciir affranchit sa Patric, 
Qui desarma les Dieux, qui reprime les Rois. 

Which, subsequently, he condensed into this admirable line : 

Eripuit Ccelo fulmen, sceptrumque Tj'rannis. 

(Euvres de Turgot, IX., 140. 



18 



were useful for France, the question must first be aslced, Is it 
useful for all mankind? — for wliatever temporary advantage 
may apjoear to accrue from acting on a difierent principle, 
nothing in the long run can be good for one nation which is 
not good for all." 

These philosophers turned their eyes toward England, as 
then oftV'ring the only example in the world of a certain 
degree of liberty ; this they recognized in the independ- 
ence of her judiciary and in the grand principles — fortu- 
nately our heritage — Avhich guided it. The words of 
Algernon Sidney were familiar to them : " Connnon-sense 
declares that governments are instituted, and judicatures 
erected, for the obtaining of justice. The king's bench was 
not established that the chief justice should have a great 
office, but that the oppressed should be relieved, and right 
done. The honor and profit he receives, come as the 
rewards of his service, if he rightly perform his duty." 
And again : " The power with which the judges are en- 
trusted is but of a moderate extent, and to be executed 
bona fide. Prevarications are capital, as they proved to 
Tresilian, Empson, Dudle}^ and many others." * 

No passage from Sydney was more frequently referred to 
than this : " They who uphold the rightful power of a just 
magistracy encourage virtue and justice ; teach men what 
they ought to do, suffer, or expect from others ; fix them 
upon principles of honesty ; and generally advance every- 
thing that tends to the increase of the valor, strength, 
greatness, and happiness of the nation, creating a good union 
among them, and bringing every man to an exact under- 
standing of his own and the public rights. On the other 
side, he that would introduce an ill magistrate, make one 
evil who was good, or preserve him in the exercise of injus- 
tice when he is corrupted, must always open the way for 

* Sidney, Discourses on Government, cliap. iii, sec, 26. 



19 



him by vitiating the people, corrupting their manners, 
destroying the validity of oaths and contracts, teachiug such 
evasions, equivocations, and frauds, as are inconsistent with 
the thoughts that become men of virtue and courage."* 
The declaration of Chief Justice Lee was also cited liy them 
with admiration — " One rule can never vary in our courts, 
viz., the Eternal rule of Natural Justice. "f 

Montesquieu had shown in his great work that the separa- 
tion of powers, judicial, executive, and legislative, was the 
basis of all free government ; and, acting upon this, much 
had been done, even before '89, to improve the administra- 
tion of justice. 

The Constitution of '89 gave to France self-government, 
and recognized the sovereignty of the people. No honest 
man had anything to fear from this Constitution, but all who 
lived by oppression and wrong were filled with dismay. 
The Christian doctrines of Turgot and Montesquieu, and the 
principle that governments were made for men, and not men 
for governments, shook the despotic thrones to their base. 
Their trembling occupants conspired at Mantua and Pilnitz, 
and formed a league to crush the constitutional government 
of France. 

In August, 1792, the armies of despotism arrived on the 
frontier, threatening to overturn that government, and, if 
opposed, to reduce Paris to ashes. Then, in the fear and 
frenzy which ensued, began those acts of violence which 
have left a stain upon the French Revolution. " Nothing," 
says one of the most conservative writers upon international 
policy, " can ever justify one State's interfering with the 
internal afiairs of another ; and the worst of mischiefs (the 
execution of those Avho have aided it) must ever be the 
result of such interference ; " and it is to this infamous and 

*IUd., chap, iii, sec. 20; III., 129, Edit, 1805. 

t These words of C. J. Lee will he found in the case of Omychund v. Barker^ At- 
kyns' Reports, I., 46. 



20 



unprovoked attempt to interfere by arms with the internal 
affairs of France, that we must trace the death of Louis 
XYI., and all the violence and all the difficulties which 
followed it. 

France had done nothing to provoke interference ; and, 
left to herself, might and probably would have organized and 
sustained a good government. This assertion I boldly make, 
conscious that it does not accord with what some of us have 
been taught. The enemies of liberty have not scrupled on 
every occasion to distort the truth, and have even on one 
occasion found an accidental ally in a President of the 
United States. 

Mr. Millard Fillmore, in the last annual message he sent 
to Congress, says that France showed a desire to force her 
form of government upon all the world, and points to a 
decree of her Convention, declaring she was ready to suc- 
cor oppressed nations struggling for liberty, as the false step 
which brought against her the coalitions and armies of 
Europe. Had Mr. Fillmore but looked at the facts, he 
would have found that the provocation to hostilities came 
not from France, but from the des})otic confederates ; and 
that the decree in question, at the same time that it showed 
a generous spirit, was also a measure of self-defence. The 
Convention of Mantua was signed 20th May, 1791 ; that of 
Pilnitz the 29th August, 1791 ; and it was not until the 
19th November, 1792, after the actual invasion of France, 
and eighteen months after the tii-st coalition against her, that 
the Convention voted the decree which President Fillmore 
leads us to infer was the cause of that invasion and of that 
coalition ; the cause, in presidential logic, coming eighteen 
months after the effect.* 

* A statement of Lord Brou<iham has led many persons into this same historical 
error. " The famous decree of 19th November, 1792, was a main cause of the dread- 
ful war which so long laid Europe waste, and overthrew so many established 
governments " — Brougham, VII., 79. But the invasion of France took place r.ome 
time before this decree. 



21 



But there are too many who speak of France, not with any 
accurate knowledge of facts, but with reckless assertion, and 
a seemingly wilful blindness to truth and to principle. 

This is not the place for long dissertations, but a candid 
examination of facts will show thdt the French people have 
never yet had a fair chance. From 1792 to 1830, the pro- 
longed pressure upon France of despotic Europe, under the 
lead for a long time of England, prevented her from forming 
a good government. The Revolution of 1830 secured the 
rights of only 240,000 ; the thirty-six millions of Frenchmen 
being- declared bv Guizot t() be no part of the " lawful conn- 
try." * The Revolution of 1848 made of these outlaws 
citizens, and they marked their possession of power by secur- 
ing to France three thousand new school-houses — by giving 
her cheap postage — l)y making all bondmen in her colonies 
free — and by placing for two years her budget in equilib- 
rium. During the eighteen years of Louis Philippe's reign 
the expenses had been every year fifty million dollars more 
than the receipts, while under Louis Na})oleon the annual 
deficit has been upwards of one hundred million dollars. 
To the Republican government of 1848 belongs the exclusive 
honor of having, for two years, kept its cash account square. 

This goA^ernment fell through the perjury of an usurper, 
and through the passive obedience of a standing army, — an 
army which despotic coalitions had taught France to regard 
as necessary for her safety. 

Before we revile the French people for having permitted 
this usurpation, let us remember that it was not accomplished 
without a bloody resistance, and that the people in the 
provinces showed the spirit of self-government Avhich was 
in them, by refusing for a long time to submit to the dicta- 
tion of the capital. 

Let us remember also that our own Congress, sitting in 



* " Je ne connais que le pays legal." Guizot Speech in Ihe Chamber of 
Deputies. 



22 



Philadelphia, was, in 1783, dispersed by armed invaders of 
its Hall, and took refuge in another city. 

Let us again remember that on this very day, three years 
ago, an assemlily of the people in a territory of the United 
States, peacefully discussing the formation of their institu- 
tions, was dispersed hy the bayonets of the Federal army. 

One of the most acute and learned of living American 
publicists, — worthy son of worthy sires, — Mr. Charles 
Francis Adams, in the admirable notes to the writings of 
his grandfather, suggests the single legislative assembly as 
one great cause of the want of stability of Republican forms 
in France ; and, in regard to the Italian Republics of the 
middle ages, he alludes to the absence of a respect for the 
rights of the minority as one of the latent causes of their 
downfall. This same observation upon the minority has 
been applied by others to France. 

It may not, perhaps, be generally known that the adoption 
of a single chamber in France was due, in a great degree, to 
the labors of our own philosopher and statesman, Franklin. 
As President of the State Convention of Pennsylvania, he 
had secured the adoption in their constitution of a single 
chamber — in his writings he had praised it — and the Com- 
mittee of the French National Assembly, La Rochefoucauld, 
Sieyes, Mirabeau, and others, give to Franklin the honor of 
having aided them, as they say, "to clear the legislative 
machine of its multiplied movements and much-praised 
balances, which made it only complicated and cumbersome ; " 
and this opinion of Franklin was also relied upon in the 
adoption of the Republican Constitution of 1848. While 
admitting the error in this, we may surely pardon something 
to those who have l)een led astray by faith in our own great 
men. 

In regard to the rights of minorities, every revolution in 
France has shown an increasing respect for them on the part of 
the people ; and in the most violent popular clubs of 1848 



23 



were heard words like these : " We ask no exclusive legis- 
lation for ourselves ; on the contrary , let us remember always 
to guard the rights of the minority ; as the law of civilized 
States throws its tutelary protection with special force over 
minors and wards, so let us, being in power, reineml)er that 
the defeated minorty are our wards, and that we are their 
responsible guardians." Compared with a sentiment of high 
and generous statesmanship like this, coming to us, though it 
does from a " red republican " club in Paris, what an ignoble 
contrast is presented by that cry of demagogues — that 
Indian war-whoop of party leaders — " To the victor belong 
the spoils." 

Under all recent governments in France, the spirit of 
inquiry in her people has remained ever active, and the char- 
acter of her judiciary generally unspotted. The reply of 
President Seguier to an improper demand of jiower will be 
recalled: "The court renders judgments, not favors." 
Under the first Napoleon, some of the courts, it is true, 
degenerated ; but the Paris bar has punished, by remember- 
ing the judge whose often repeated formula was : Vempe- 
reur a dit et je vous le rcj^ote — " The emperor has said, and I . 
repeat it " — and one of the declared reasons for the over- 
throw of Napoleon was, that he had " confounded all powers, 
and destroyed the independence of the judiciary." * 

Every change in France has shown a higher development, 
a larger education, and a greater power of self-government 
on the part of her people. It has taken England some six 
hundred years to bring her parliamentary machine into its 
actual state ; and yet, only four years ago, the husband of 
Queen Victoria publicly stated, at the Trinity House dinner, 
that it must be regarded as still on trial. Let us not, then, 
question the capacity of the French, or the Italian, or the 
German people, simply because they may fail to achieve in 



*See the Senatus Consultem of April, 1814, Sec. VII. 



24 



six months what England has worked upon for six cen- 
turies. 

But we are told that Italy will only change its master, 
and that France will take the place of Austria. It is not the 
interest of Louis Napoleon to remain in Italy, nor is it 
possible, under any circumstances, for France to degrade 
herself to the level of Austria. 

The career of the elder Napoleon in Italy, Avhich was such 
as to cause his name to be still revered there, may here be 
safely a})i)ealed to. Industry was awakened and encouraged, 
schools founded, the sciences stimulated, and academies 
organized l)y him who had destroyed them in Paris. The 
courts were changed, and in place of a system which favored 
and even required servile and corrupt judges, one was 
installed which led to the impartial administration of justice. 
The armies of France, under Napoleon, brought to Italy 
some of the fruits of the revolution of '89. If the worst 
predictions of the enemies of the war should be fultilled, 
and Italy gain by it only a French master, it would still, 
judging by the past, be a change from darkness to light, 
from a government of the most loathsome brutality to one 
of comparative civilization. 

And here let me say, that if I seem to speak harshly of 
the Austrian domination in Italy, it is because, with my own 
eyes, I have seen its etiects. I will not sadden this day by 
the recital of atrocities, the remembrance of which, even at 
this distance, chills my blood. To me it seems incredible 
that any one can be foimd ready to defend the government 
which practises them. 

Nor has Italy received anything from Austria in exchange 
for all her sulierings. The well-made roads which are 
pointed out to the stranger were nearly all the work of 
Italian engineers during the time of Na})oleon ; but, even if 
some material improvement had been made, it would be as 



25 



nothing compared to the immense amounts Austria has 
drawn from Lombardy, l)v forced loans and by crushing- tax- 
ation. A1)out fifty per cent, of the revenue of hmd-owners 
goes to the Austrian treasury; "and all we get in ex- 
change," said a Loni])ard to me, " is, once a week, the 
music of an Austrian regiment." 

But give Italy a fair chance. Take from her the incubus 
of Austria. Take awa}^ those bayonets, with which, through 
a blind reverence on the part of other States for existing 
abuses and the balance of power, Austria has been allowed 
to transpierce her. " Let the thief and the receiver, the 
murderer and the robber, be no longer suffered to play the 
part of watchmen " in Europe, and no one can dou])t the 
result for Italy. 

It does not folloAv that a perfectly balanced government 
will leap at once into life. Difficulties of internal organiza- 
tion doubtless will arise. jNIazzini Avill strive for a united, 
central republic, while others will be glad to place them- 
selves under the constitutional system, which has developed 
statesmen like Cavour and Azeglio, to plan their wars and 
alliances, and l)rave captains like Victor Emanuel to lead 
their armies. These differences of opinion will create dis- 
cussion, into which, perha|)s, excited feeling will sometimes 
enter ; our own conventions will have set them the example ; 
but to all prophets of evil it is sutficient to say, that the 
Italian people have the perfect right to judge of their own 
institutions, and, if they find pleasure in it, to wrangle over 
them. They may, i)erhai)s, think that nothing is so good as 
the jar of a constitutional discussion to shake up the stagnant 
elements of a slumbering society. Looking from a distance, 
if we might venture to express desires upon a matter which 
exclusively concerns the Italian people themselves, it would 
be that, with some changes in the actual boundaries of States, 
representative institutions, securing the largest liberty, 
should be founded in each of them, and a central federative 



26 

government ])e created to administer such powers as the 
several States should contide to it. 

" The United States of Italy " thus formed would satisfy 
the love of unity, so strong in the Italian heart, \v\u\e the 
State organization Would give full play to that spirit of local 
and municipal liberty, which, in former days, was so fully 
developed in the Italian Kepublics. 

The great work of this war would, however, be very 
imperfectly done, if it stopped with the liberation of Italy. 
Already, in 1848, the unaided Italians having taken Peschi- 
era, and driven Austria under the walls of Verona and 
Mantua, Avhich, for some time to come, will probably be her 
stronghold, she offered to treat with France and England as 
meditators for the surrender of Lombardy, provided the new 
State would assume a portion other enormous del)t. 

If nothing be done now but to rescue Italy, and peace be 
then made with Austria, that peace can l)e only a truce ; for 
we may expect, in a short time, to see her return to her old 
course, and again, l)y her outrages, disturb the civilization 
of the Avorld. 

After Italy is secured to freedom there still remains 
Hungary. 

This country, whose constitution goes l)ack almost to the 
date of jNIagna Charta, and which had preserved its political 
independence, though exposed to every species of encroach- 
ment from the Austrian archdukes, whom, in an evil hour, 
it had invited to its throne, — this country, so brave and so 
unfortunate, merits all our interest, for it is the home of 
heroes and of self-sacrificing, honorable men. 

Some five and twenty years ago, several Hungarian noble- 
men visited the United States, travelled throughout the 
country, and had the good fortune in Boston to form an 
intimacy with a gentleman Avhose views upon European 
questions were as enlightened as his general knowledge was 



27 



varied and profound, — Mr. Alexander H. Everett. On their 
return to Hungary, one of their number, Farkas Sandor, 
pubhshed, in the INIagyar tongue, a l)ook pointing out the 
worlving of our institutions ; and, while rendering thanks to 
Mr. Everett for the counsels received, recommending the 
policy of the Northern States as an example for Hungary. 
The German translation of this work was prohibited by 
Austria, but the Hungarian edition had already gone l:>eyond 
the reach of her police. The effect of the excursion to 
America was soon apparent. At the next session of the 
Diet, Baron Wesselenyi, Count Bathjany, and others of the 
travellers and their friends, proposed a series of measures 
tending to the abolition of those feudal privileges which 
divided the Hungarian [>eople into hostile classes, and pro- 
posed at once to lay down their titles and their power for the 
common good. 

Austria now took the alarm. She had always pretended 
to be the friend of tlie peasants against the nobles, but 
when the nol)les proposed to give up their privileges and 
emancipate the serfs, she then used all her power to oppose 
them. There was a deep and wicked policy in this ; it being 
the aim of Austria to keep up such a hostility between 
classes, such a war between capital and la])or, that she might 
be able at some time to completely subjugate Hungary, by 
calling upon the peasants to cut the throats of the land-own- 
ers. And this, in the spring of 1846, she actually did, in 
the neighboring province of Gallcia. 

Shortly after, two men appeared upon the scene. Count 
Stephen Sechenyi and Louis Kossuth. Sechen^i sought the 
advancement of Hungary through material improvements ; 
Kossuth sought it through the education of the people, and 
by awakening in the minds of the more Ibrtunate classes 
of society a sense of their duties. By securing to the 
peasants the right of voting for a delegate to represent their 
villages at the general election, — thus bringing home to them 



28 



the practice of free institutions, without, however, creating 
such a mass of new voters as wouhl suddenly disturb the 
general result, — b}^ settling the eternal question of ca])ittd 
and labor, and making the holders of each clearly understand 
that their real interests are reciprocal ; by these and kindred 
measures — which prepared the Avay for that larger liberty 
secured to all classes during the constitutional ministry of 
Kossuth — that eminent orator and tribune show^ed himself 
in Hungary to be a great, practical, conservative statesman. 

The Emperor of Austria having called in foreign troops 
to put down the legal government of Hungary, and having 
neolected to take the oath of allegiance to her Constitution, 
which the compact between the Hungarian nation and the 
Dukes of Austria made the indispensable preliminary to any 
act of sovereignity on his pait, the Diet, in the name of 
the people of Hungary, on the anniversary of the battle of 
Lexington, 1849, declared that all connection between them 
and the house of Austria was dissolved. 

The noble struggle made by the Hungarian people is still 
fresh in your memories. The forces of despotism were too 
^trono-, and their countrv fell. Had anv other State recoo- 
nizecl their independence, it would have enabled them to 
contract a loan, and to purchase the arms necessary for the 
contest. Our own Congress was unal)le to contract any loan 
until our independence had been recognized in Europe. To 
the eternal honor of Mr. Clayton, then Secretary of State, a 
commissioner was despatched with full powers to enter into 
negotiations with the new government ; but he, alas ! arrived 
too late. 

England looked calmly on while a government similar to 
her own was destroyed by foreign arn)-^^. Had she, in the 
summer of lS-i9, opened relations with the constitutional 
government of Hungary, which she could have done without 
shaking any existing rights ; without even giving any just 
cause of disturbance to "those iinical personages who," in 



29 



the words of an English peer, himself a negotiator, " have 
brought a sort of ridicule upon the name of diplomacy ; '' 
had she then taken her stand upon the Pragmatic Sanction 
of 1723, and upon the coronation oath of the last king — 
both which documents, duly tiled away in red tape at the 
foreign oiiice, make part of the public law of Europe, and by 
both which the Austrian sovereigns recognize the political 
independence of Hungary — had she done this, she might 
have spared herself all the sacrifices of her war in the 
Crimea, and all the embarrassments of the present contest. 

Then there might have been at the present moment a great 
Constitutional State on the banks of the Danube, having 
municipal institutions which secured local rights, and a 
population accustomed to constitutional forms, and to liberty 
founded on laAv. Here would have l)ecn a nucleus round 
which the ditlerent provinces of Turkey miglit have clustered, 
as they dropped away from her corru})t body ; and Hungary, 
Transylvania, Yalachia, INIoldavia, Servia, Bosnia, and Bul- 
garia have formed the "United States of the Danube," — 
a grateful and efficient ally for England. But the blind 
admiration for Austria on the })art of the English aristocracy, 
strengthened by the labors of Metternich, then in London, 
would not permit this recognition. 

" Of all the subjects wdiich can come liefore the people at 
large," says Lord Brougham, in one of his })()litical essays, 
" the foreign policy of the State is the one on which they 
the least deserve to l)e considted. Their interests are most 
materially aflected l)y it, no doubt, for on it depends the 
great question of peace or war. But the bearing upon their 
interests of any particular operation is far from being imme- 
diate, and a measure may be most necessary for securing th<^ 
peace, even the independence, of the nation, and yet its 
connection with these great objects be far too remote for the 
popular eye to reach it." * 

* This was written in 1843. See Brougham's Woris, Vol. VIII., p. 93. 



30 



The events of the year 1849 in England offer a singular 
commentary upon this dogma of Lord Brougham. Then 
the people saw clearly the interest of England ; the ruling- 
classes did not. The ^^eo/y^e flooded the House of Commons 
with petitions for the recognition of Hungarian Indej)end- 
ence ; the aristocracy remained idle. A few like Lord 
Lyndhurst, the Marquis of Northampton, and the lamented 
Earl Fitzwilliam, were true to themselves, and acted like 
enlightened English noblemen ; hut the greater })art stood in 
cold indiflerence to Hungary, or joined the sharers in Met- 
ternich's Eaton Square dinners, in looking with delight at 
the triumph of her enemy. 

And what is this Austrian empire, in sympath}^ for which 
the ruling classes of England forget the interests of their 
country and the interests of humanity? An agglomeration 
of States, differing in nationality, language and religion, 
brought together by fraud and violence, and held by brute 
force, in sul)jection to a government the most infamous in 
history. 

Bohemia, the land of John Huss and Jerome of Prague, 
was annexed after a series of atrocities which make the 
Spanish Inquisition a[)pear respectable in our eyes. Three 
million inhabitants were reduced to seven hundred and 
eighty thousand, and of thirty thousand seven hundred vil- 
lages, only >ix thousand were left standing. 

Excepting the Tyrol, the same atrocities, though in less 
degree, have been practised in every one of the different 
States, — the forces drawn frtun all l)eing used against any 
one which showed a spark of liberty. As a general rule, 
the soldiers of each State have been sent to distant provinces, 
of the language of Avhich they were ignorant, and where 
there was little pro])al)ility that any relations would spring 
up to weaken the blind submission imposed on them by 
military servitude. Sometimes, as in the recent battles in 



31 



Italy, the young soldiers, torn by her conscription from the 
soil, have lieen placed by Austria in the front rank, and fired 
upon from behind, did they shrink from slaying their friends 
and deliverers. 

The government of this empire has, when in danger, con- 
stantly promised reforms in the provinces, and as steadily 
opposed reforms when the danger was passed. Its perma- 
nent policy has been to keep up a state of endless hostility 
between classes ; to rule by dividing, by. making appeals to 
the most anarchical passions, b}" exciting to plunder, and 
even, as in Galicia, to assassination. 

This government is not an aristocracy of virtue, of talent, 
of l)irth, nor of wealth, l)ut of soldiers and bui'eaucrats, 
whose practice on many occasions has been the development 
of the principles of the most exaggerated communism. 
Property has not been respected by them any more than 
liberty; — whenever the treasury was empty, it has had no 
lights sacred in their eyes. 

The Austrian government has not scrupled, over and over 
again, to repudiate a large portion of its national debt, to cut 
down to one-half their nominal value its treasury notes, and 
to collect forced loans. All Europe would have rung with 
indignation had any of these deeds been done by a liberal 
government. 'Ihe culminating outrage, however, of Austria 
upon the rights of property was perpetrated in 1852, when 
the emperor, proclaiming himself the guardian of all minor 
orphans, disi)ossessed the rightful guardians and trustees, 
seized upon four hundred and seventy million dollars — the 
heritage of the fatherless — and gave in exchange his own 
promises to pay. 

The personal violence committed, even in the old German 
provinces, would seem almost incredible to one who had not 
himself witnessed it. The printed law prohibits the flogging 
of women. The governor of one of the provinces, with 
whom I happened to be well acquainted, pointed out to me 



32 



this law, which he had shown a few clays hefore to an 
English nobleman Avho admh*ecl Austria. "Here," said the 
governor, showing nie the law, " is the text, and here," hand- 
ing me repcn-ts from the police, describing the flogging of 
two women that A'ery morning, " here is the sermon." 

One of the greatest sticklers for existing States, and up- 
holders of the actual balance of power. Lord Brougham, 
speaking of the partition of Poland, has said, "It would not 
be easy to see any danger arising to the Xorth Amei'ican 
Union from that partition in 1793-4, or the Holy Alliance in 
181(3 and 1820 ; and yet it is certain that the Americans had 
a right to complain of such acts being permitted, because the 
impunity of the wrong-doers gave a blow to the political 
morality of all nations, and lowered the tone of public prin- 
ciple. The United States was interested like all other 
countries, in seeing that the principle of Xational Indepen- 
dence was held sacred, that none could conspire against it 
with impunity."* 

If this be true, then certainly we have a right to protest 
against the conduct of Austria, which is a prolonged violation 
of the principles of national independence, and of political 
and private morality ; and since it is now clear that it is only 
by this conduct that she lives and moves and has her being 
— that her existence hangs u})on injustice and outrage — 
then, following up the reasoning of our statesman, so con- 
servative on questions of foreign policy, we have a right to 
protest against the very existence of the Austrian empire. 

Civilization and hinnanity demand that this wretched 
machine of cruelty should be broken u}) ; that this oppro- 
brium of the nineteenth century and of the human race 
should be resolved into its elements — and the so-called 
emperor, with the German provinces, take his place, an 
humble aichduke, in the German Confederation. 

* Essay on Gcnenil Principles of Foreign Policy. — Bro in /ham's Works, Vol. VIII., 
p 76. ' 



33 



Then might Galicia and Bohemia ""resume their position 
with the Slavonic family ; then would Hungary become again 
free ; and then Germany, no longer having Austria to crush 
her, as in 1850, with the forces of States foreign to her, 
might awaken to a new life, and found a government in 
which liberty and order should be secured by making the 
German people interested in their maintenance ; a govern- 
ment in which her men of science should take their true 
])osition, which should not condemn to death her poets, nor 
cause her historians to pine in dungeons,* — Avhich should 
not force her Humboldts to vote with the oi)position, nor 
drive her Bunseiis into political exile. Then might there be 
peace, and not merely a truce in Europe ; and the beneficent 
plans of Turgot for reducing standing armies be carried out. 

But the great olistacle to this happy consummation is the 
policy which the ruling classes in England impose upon her 
government. The crimes of Austria may be traced directly 
home to England, as without the moral suj)})ort of that 
power she could not stand a twelvemonth. The traditions 
of the foreign office, and of the governiug classes, based on 
the events of a hundred and fifty years ago, point to the 
house of Austria as the necessary ally of P^ugland. Scarce 
one of the conditions which then led to that alliance exists 
now. Thus it is ever Avith European policy. Men of genius 
conceive a system appropriate for a given series of facts ; 
the facts change, but formalists, unalde to appreciate the 
motive of the system, move on in the old track to their own 
perdition. 

Knowing how completely her existence depended upon the 
favor of England, Austria has used all her wiles to retain it. 
Weak young Englishmen of fiuiiily, attracted to Vienna by 
its cheap and facile vices, have been caressed and flattered. 
On the arrival of Englishmen of any political importance, 

* As was the case in 1850 with the poet Kinkel, and with the Professor of History 
in the Ilcidelherg University, Gerviniis. 



34 



immediate notice has been given by the police, and the hint 
conA'eyed to certain adherents of the crown to treat them with 
hospitality, and to twine Austrian corkscrews round their 
hearts. 

She has also used her money successfully with a portion of 
the European press. Hence the blatant articles we have read 
upon a march to Paris. Attempts have even been made in 
this country, but, to the honor of the American press, no 
editor has been found willing to soil his hands with the 
money stolen from the orphans of Vienna. 

On the great questions of the day the English people are 
perfectly sound ; l)ut the foreign policy of England is 
directed by men who care l)ut little for the popular senti- 
ment ; who decide questions neither by rules of natural right 
nor by the dictates of a far-seeing statesmanship ; and who, 
be they Tories or Whigs, have a devotion to Austria so blind 
and so infatuated that it can only be disturbed by the fear of 
losing their [)laces, or the fear of bringing upon England a 
great calamity. 

And here begin our duties and our responsibilities. In 
wdiatever contest ensues, our sympathies should be with 
those who strive for their natural rights ; with those who 
strive to imitate us in what we have done of good ; and to 
them we owe all the aid we can ghe, without directly plung- 
ing into the contest. 

No English ministry would rashl}" enter into a war, which 
promised to be long and complicated, without assuring and 
strenfftheninof its friendly relations with the United States. 
This may now be regarded as a rule of English polity. Let 
us make the English government clearly understand that in 
no case, and in no form, can it have aid froui us in any 
measure tending to uphold the house of Austria. More, let 
us say to that government, that in such a course, she shall 
have, at all times — and in every manner, short of act- 



35 



ual war, by which wc can reach her — our determined hos- 
tility. 

Let us do for the old world what the old world did for us 
in our struggle for Independence. Let us, in favor of the 
right, interpose another " Armed Neutrality," — a neutrality 
armed, not with the cannon of Catharine, ])ut with the 
printing press and the electric light of truth. And the 
mighty pul)lic opinion thus created shall come to aid the 
English people in keeping their rulers in the path of duty, of 
justice, and of humanity. 

But our responsibilities do not stop here. We owe it to 
those who look to us for a model, we owe it to ourselves, to 
give them an example of good government, — of a govern- 
ment which at all times and in all places is true to the 
memories and to the principles of the day we celebrate, — of 
a government free from corruption, and so well balanced 
that it never permits the encroachment of any one of the three 
great branches of power upon the legitimate field of another. 

We have already seen that, even a century ago in France, 
the idea of civil liberty im[)lied an independent, but rigidly 
responsible judiciary, and a complete separation of the 
legislative, executive, and judicial functions. 

It was an old rule of the Parliament of Paris that no 
member of that court should go to the Louvre or frequent 
the houses of Princes ; and in England, without there being, 
as I believe, any positive rule, custom requires that puisne 
judges shall never go to the Court of the Sovereigns. This 
provision is one of many to keep the judiciary above even 
the suspicion of making itself an instrument for despotism in 
the hands of the executive. 

In France, where the theory of institution is more closely 
studied than in England, ample provision has been also 
made to prevent any usurpation by the judiciary of the 
functions of the leixislature. 



36 



One of the most ingenious and profound of modern authors 
— Jules Simon — speaking of the progress in the develop- 
ment of judicial institutions, even in countries where but 
little progress has been made in other things, says : '' If 
placed before judges a thousand miles from home, and called 
on to plead a cause, I know that if my cause be just, and 
my judges l)e honest, I shall win it; and this because the 
great principles which regulate the conduct of judges are 
everywhere the same." * 

Of these great principles, one of the most important is 
that which confines the judges strictly to the case and point 
l)efore him, which does not permit him to wander from that, 
and which forbids him, under any pretext, to make of the 
judicial ben(!h a tripod or a stump. 

"An opinion," said Chief Justice Vaughan, "given in 
court, if not necessary to the judgment given of "record, is 
no judicial opinion ; '"f and Chief Justice Willes says, " great 
mischiefs must arise from judges giving s;ucli opinions.":}: 

The great legal minds of France have spoken with even 
more force. "The judge," say they, "is necessarily con- 
fined strictly to the point legally brought before him. If he 
permit himself, even with good intentions, to wander 
from this — to express from the bench opinions upon other 
matters — opinions which it is true would have no judicial 
value, but which might have an effect upon timid and igno- 
rant minds — he unfits, himself for the office of a judge. He 
throws away the impartiality Avhich he should have when a 
point, similar to that which he has discoursed upon, comes 

* Le Devoir, par Jules SJmon. Simon, like Arago, gave up luci-ative places under 
the Freneh g-.ovcrnnient, rather than swear alliance to a usurper. He has just been 
nominated to the chair in the Institute made vacant by the death of de 'J'ocqneville. 

t Bole V. Jlcrton, Vaughan's R., .382. " An extra-judit'ial opinion given in or out of 
court is no more than the prolatura or saying of him wlio gives it, nor can be taken 
as his opinion, unless everything spoken at pleasure must pass as the speaker's 
opinion." — Ihid. 

X Willes, 666, See, also, Ram, On Legal Judgment, 22, 



37 



lawfully before him ; and he eneroaches upon the first 
branch of the sovereign power — the legislative — all which 
is inachiiissible in a well-organized society." * 

In no country has the judiciary been more constantly 
respected that in our own. It has deserved respect, for it 
has respected itself. The decisions of Marshall, of Story, 
and of Curtis, have been adopted as law in the courts of 
other countries. The severe criticisms of Jefferson upon 
the Supreme Court of the United States have not 'generally 
been concurred in by the intelligent mind of the country. 
He charged that court with arrogance, and with having both 
the power and the will to overturn the constitutional liberties 
of the country. f - Upon no point was the great father of 
American democracy more earnest than upon this ; and no 

* See the debates upon the adoption of the Code Napoli'on for a full discussion of 
his interesting' subject ; also Berryat de Saint-Prix, Conrs de Procedure Civile; aiid 
Meyer Origineet Progres des Institutions Judiciaires en Europe. This last authority, 
speaking of the coui'ts of civilized states, says : "Penetrated with the truth that courts 
are estal)lishcd in order tobring difierences to an end; that their authority is based 
only on the requisition of parties who implore their aid; that, in one word, judges are 
made for pleaders, and not pleaders for judges ; the legislator has laid down the 
principle, that the judge can give no decision or opinion except upon the requisition of 
one of the parties to a suit, and in the limits fixed by that requisition. The judge is 
free to grant or to deny what is asksd ; to ask for further information without which 
he feels unable to decide ; to allow a part only of what is asked ; but he cannot 
exceed the demand made, neither in quantity nor in quality. . . . The judicial 
power is by its verj' nature passive. He who holds in his hands the balance of jus- 
tice cannot lean to one side without causing it to incline. The judge who agitates, 
under whatever motive or pretext, cannot be impartial." — Meyer, IV., 527, et 
Seq. 

t Jefferson says, in 1820 ; " The judiciary of the United States is the subtle corps of 
sappers and miners constant!}' working underground to undermine the foundations of 
our confederated fabric. They are construing our Constitution from a coordination of 
a general and special government to a general and supreme one alone. This will lay 
all things at their feet. .' . . Having found, from expei-ience, that impeachment is 
an impracticable thing — a mere scarecrow — they consider themselves secure for life; 
they skulk from responsibility to public opinion, the only remaining hold on them. 
An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if 
unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty 
chief judge, who sophisticates the law to his mind by the turn of his own reason- 
ing." — Writings of Jefferson, pxihlished by order of Congress, VII., 192. See, also, 
pp. 199, 216, 256, 278, 293, 321, 403. 



38 



opinion of his brought upon him more severe Jittacks from 
his political opponents. 

Hamilton, in earlier days, and more recently the learned 
Justice Story, insisted on the other hand, that it would be 
difficult and almost impossible for the Supreme Court to go 
astray, — that the cases upon which it could lawfully act were 
strictly limited,* and Story declared that, should it ever 
exceed its powers or make a wrong decision, the enlightened 
public opinion of the country, closeh' watching it, would 
recall it to a sense of duty. 

A recent scene in the Supreme Court of the United States 
has shown that Jeflerson was no false prophet, and has 
furnished at the same time a serious warning to all who 
prefer a government based upon law, to either despotism or 
anarchy . 

The case of Dred Scott was the occasion taken by certain 
Judges of the Supreme Court, to speak from the bench on 
matters not legally before them, f — on matters which they 



* Hamilton's opinions upon the limited power of the Supi'eme Court as laid down in 
the Federalist are further developed in the 3d and 4tli vols, of the History of the 
Republic, by his son, John C. Hamilton. Story, in his Commentaries on the Constitu- 
tion, §1777, 2d edition, says: "The functions of the judj^es of the course of the 
United States are strictly and exclusively judicial. Thej- cannot, therefore, be called 
upon to advise the President in any executive measures, or to give extra-jiulic-ial inter- 
pretations of law." 

Some confusion exists in the popular mind from the often repeated assertion that it 
is the province of the Supreme Court to decide all constitutional questions. Story 
says : " The Court can take co<rnizance of them only in a suit re<>ularly brought 
before it, in which the point arises, and is essential to the rights of one of the parties." 
Precisely as the humblest Justice of the Peace would do. The del)ates in the Federal 
Convention show the exact meaning attached to the words of the Constitution, extend- 
ing the judicial power of the United States to " all cases arising under the Constitution 
laws, and treaties of the United States." Mr. Madison feared that this might be 
interpreted to mean questions, but it was understood that the power given was 
" limited to cases of a judicial nat\ire." — See Madison's debates, EUiot.V., 483; also 
Curtis, who ablv discusses this point, Commentaries on the Jurisdiction of U.S. Courts, 
L, 95. 

t " Many things here said by the Court which arc of no authority. Nothing which 
has been said by them, which has not a direct bearing on the jurisdiction of the Court 
against which they decided, can be considered as authority. I shall certainly not 



39 



had no right in their judicial capacity to discourse upon, — 
which, us judges, they could not touch without encroaching 
upon the functions of the Legislature, nor as individuals 
without prostituting the dignity of their office ; converting 
the Temple of Justice into another Tammany Ilall, and the 
Supreme Bench into a caucus-platform. And one of these 
harangues, that of Mr. Taney, was but a short time after 
seized upon by the Chief Executive Magistrate of the coun- 
try, treated by him as a decision, and made the justification 
of a particular line of policy, — a policy tending to make 
labor dishonorable in the Territories of the Kepublic.* 

regard it as such. The question of jurisdiction being before the Court was decided by 
them authoritively, but nothinjir beyond that question." — Justice M'Lean, in Dred 
Scott V. Sandford (Howard, XIX.), 549. 

* I know of no eminent lawyer in the country who has sustained the declarations of 
the Chief Justice in this ease. It has been asserted that the former Attorney-General 
of the United States, Mr. Caleb Cushing, whose profound learning and legal sagacity 
all admit, upholds them ; but he is repoi-ted to have said, on the 27th February, 
1858, in the Legislature of Massachusetts : " There are parts of the opinion of the 
Court, which, in his opinion, could not be sustained," and then to have commented on 
those parts "from which he dissented." (See Legislative debates in the Boston Daily 
Advertiser, 1st March, 1858.) On a subsequent day, Mr. Gushing being present, the 
following able analysis of the case was made by a member of less experience but of 
equal legal acumen, Mr. John A. Andrew, and the correctness of this analj-sis has 
never, that I am aware, been disproved by Mr. Gushing. Mr. Andrew said : — 

" On the question of the possibility of citizenship to one of Dred Scott's color, extraction 
and origin, three .Justices, viz., Taney, Wayne, and Daniel, held the neg-ative. Nelson and 
Campbell passed over the plea by which the question was raised. Grier agreed with Nelson. 
Catron said that the question was not open. McLean agreed with Catron, but thought the 
plea bad. Curtis agreed that the question was open, but attacked the plea, met its aver- 
ments, and decided that a free-born colored person, native to any State, is a citizen thereof, by 
birth, and is therefore a citizen of the Union, and entitled to sue in the Federal Courts. But 
three judges of the Supreme Court have, as yet, judicially denied the capacity of citizenship 
to such as Dred Scott and family. 

" Had a majority of the Court directly sustained the plea in abatement, and denied the 
jurisdiction of the Ch'cuit Court appealed from, then all else they could have said and done 
would have been done and said in a cause not theirs to try and not theirs to discuss. In the 
absence of such majority, one step more was to be taken. And the next step reveals an 
agreement of six of the Justices, on a point decisive of the cause, and putting an end to all the 
functions of the Court. 

" It is this. Scott was first carried to Rock Island, in the State of Illinois, where he re- 
mained about two years, before going with bis master to Fort Snclling, in the Territory of Wis- 
consin. His claim to freedom was rested on the alleged cft'ect of his translation from a slave 
State, and again into a free Territory. If, by his removal to Illinois, be became emancipated 
from his master, the subsequent continuance of his pllgrhnage into the Loui.«irma purchase 
could not add to his freedom, nor alter the fact. If, by reason of any want or infirmity in the 



40 



To the honor of tlie judiciary, two judges, and they the 
most learned upon the bench, were found faithful among the 

laws of Illinois, or of conformity on his part to their behests, Dred Scott remained a slave 
while he remained in that State, then — for the sake of learning the effect on him of his 
territorial residence beyond the Mississippi, and of his marriage and other proceedings there; 
and the effect of the sojournment and marriage of Harriet, in the same Territory, upon herself 
and her children — it might become needful to advance one other stej) Into the investigation of 
the law; to inspect the Missouri Compromise, banishing slavery to the south of the line of 30° 
30', in tlie Louisiana purchase. 

"But no exigency of tlie cause ever demanded or justified that advance; for six of the 
Justices, including the Chief Justice himself, decided that the stutun of tlie plaintiff, as free or 
slave, was dependent, not upon the laws of the State into which he had been, but of the 
State of Missouri, in which he was at the commencement of the suit. The Chief Justice 
asserted that, it is now firmly settled by the decisions of the highest Court in the State, that 
Scott and his family, on their return were not free, but were, by the laws of Missouri, the 
property of tlie defendant.' This was the burden of the opinion of Nelson, wjio declares, 
' the question is one solely depending upon the law of Missouri, and that the Federal 
Court, sitting in the State, and trying the case before us, was bound to follow it.' It received 
the emphatic indorsement of W.ayne, whose general concurrence was with the Chief 
Justice. Gricr concurred in set terms with Nelson on all ' the questions discussed bj' him.' 
Campbell says, ' The claim of the plaintiff to freedom depends upon the effect to be given to 
his absence from Missouri, in company with his master in Illinois and Minnesota, a«d</ijs 
fffect is to be axcfrtained hij reference to the Icacs of Missouri.' Five of the Justices, then 
(if no more of them), regarded the law of Missouri as decisive of the plaintiff's rights. 

" The Chief Justice and Justices Wayne and Nelson and Gricr plainly hold that, on this 
point, the Court of the United States were bound to follow the decision of the Court of Mis- 
souri, which had already passed upon the question. And if Campbell did not intend to be 
hound by the Missouri Court, we are at a loss to understand what he does mean; since ask- 
ing, ' what is the law of Missouri in such a case? ' and, after citing Scott r. Emerson in the 
15th of the Missouri reports and various authorities of several States, he concludes that ' questions 
<>{ aldttm are closely connected with questions arising out of the social and political organiza- 
tion of the State where they originate, and each Hovereign poicer munt determine them within 
itfi own territories.' He held conclusively and distinctly, and so also did Mr. Justice Catron, 
in common with all the judges besides McLean and Curtis, — on their own investigation and 
reasoning, — that the law of Missouri (to be ascertained either by themselves, or by exploring 
the declared opinions of the Courts,) must rule the cause. And they all affirm that, irrexpec- 
tive of the law of Illinois and of the Territory, Scott was a slave by the law of Missouri, on 
his return within the confinesof its jurisdiction. 

" If the law of Illinois could have had uo possible effect to secure freedom to Scott, when 
again remitted to Missouri, it follows that neither could the laws of the territory have availed 
him. The majority of the Court had no occasion, therefore, to follow them into the territory, 
in order to look into the condition of Harriet and the children, because Dred, as a slave, could 
have uo wife nor child, known to the law or recognized by the Court. But if any such occa- 
sion had existi'd, tlu' same answer — of the effect of the Missouri law — was sufficient to 
control the cause. 

' " Here, then, we have a man, found by three of the Court, to be a person impossible to be a citi- 
zen, by reason of ancestral disabilities ; by the same three, and four more of them, to have been a 
.stoce, by the law of his domlcil at the inception of the suit. And yet, on the strength of 
observations and reflections indulged by a majority of these gentlemen, after their judicial 
functions had ceased for want of a competent pl.iintift' in the suit — for want of a man compe- 
tent to the ownership of his own body (on one side of their record), — it is claimed by the 
I'resident of the United States, that slavery ' exists in Kansas tender the Constitution of the 
United States ' and that ' this point has been declared by tlie highest tribunal known to our 
laws.' " 



41 



faithless. Mr. Justice McLean, after showing the dangerous 
novelty of the conduct of the Court : its violation of prec- 
edent, of written law, and of natural right; and after 
declaring that the mere " sayings " of the Court would not be 
regarded by him as authority, expressed his regret that its 
declaration of a year before (in Pease v. Peek, 18 Ploward) 
did not seem to be fresh in the minds of some of his 
brethren: "that it could not yield its convictions where, 
after a long course of consistent decisions, some new light 
suddenly springs up, or an excited public opiniou has elicited 
new doctrines subversive of former safe precedent." * 

Mr. Justice Curtis declared that,, without violating duhj, 
he could not follow Mr. Taney in discussing matters not 
before the Cburt; and, true to judicial principles, said, "he 
did not hold the opinion of that Court, or any Court binding, 
when expressed on a question not legitimately before it." 
Pie did not fail, however, thoroughly to examine the question 
before the Court, and showed that upon that, the opinion of 
Mr. Chief Justice Taney Avas as illegal as was the demagogi- 
cal harangue of :Mr. Taney on matters not before the Court, f 

The Chief Justice had declared that, "every person, and 
every class and description of persons, Avho were at the time 
of the adoption of the Constitution recognized as citizens in 
the several States, l)ecame also citizens of this new political 
body. "I He asserted, however, that the free descendants of 



* Howard, XIX., 563. 

t In the trial of Woodfall, the printer of Junius, the aberrations of the Chief 
Justice— less ilagrant by far than those in {he Drcd Scott case — were, it will be 
remembered, the object of discussion in the House of Lords, where Lord Chatham, 
on the nth of December, 1770, said: "The Court are so confined to the record that 
they cannot take notice of anything that does not appear on the face of it; in the 
legal phrase, they cannot travel out of the record. The noble judge did travel out of 
the record; and I affirm that his discourse was irregular, extra-judicial,' and unprec- 
edented. His apparent motive for doing what he knew to be wrong, was that he 
might have an opportunity of teUing the piihlic extra-judicially " certain things, which 
Chatham proceeds to develop. — Woodfall's Junius, I., 29. ' 

+ Howard, XIX., 406. 



42 



imported Africans "were at tliat time (viz., in 1787) con- 
sidered as a subordinate and inferior class of beino-s," havins: 
no natural rights ;* that "they had for more than a century 
before been regarded as beings ... so far inferior that 
they had no rights which the white man was bound to 
respect ; "f that " this was an axiom in morals as well as in 
politics ; " from which premises he declared that they were 
not then citizens in the States (passing over in utter silence 
the statutes of several States prior to 1787, which made them 
citizens), and could not, therefore, be then, nor afterwards, 
citizens of the United States.} 

Well did ]Mr. Justice Curtis overthrow this monstrous 
assertion, by pointing to the laws of five States, among them 
North Carolina, which, in 1787, gave the free colored men 
the full rights of citizens, enforcing this by the decision of 
Judge Gaston of North Carolina. He also cited the Articles 
of Confederation of 1778, the fourth of which declared the 
"free inhabitants of each of these States entitled to all the 
privileges and immunities -of free citizens in the several 
States ; " he showed by the discussions in Congress at the 
time, that the questions was thoroughly understood ; and 
pointed out the efforts of South Carolina to so amend this 
articles as to restrict citizenship to whites, efforts in which 
only one of the thirteen States joined her.§ Mr. Justice 

* " No right or privileges but such as those who held tlie power and the government 
might grant them." — C. J. Taney, in Howard, XIX., 405. 

t Howard, XIX., 407. 

X This paragraph is the careful condensation of twenty-four pages of casuistry in 
the official report of the opinion of the Comt. — /Wrf., 403-427. The marginal sum- 
mary of the official reporter stands thus : " When the Constitution was adopted, they 
[i.e., freemen of the African race, whose ancestors were brought to this country and 
sold] were not regarded in any of the States as members of the community which 
constituted the State, and were not numbered among its 'people or citizens'; conse- 
quently the special rights and immunities guaranteed to citizens do not apply to 
them. And, not being ' citizens ' within the meaning of the Constitution, tliey are not 
entitled to sue in that character in a court of the United States." — Ibid., 393 

^s Howard, XIX., o72-5. 



43 

Curtis might also have cited the statute of Virginia of 1783, 
which declares that all freemen are citizens, and which 
repeals the law of 1779, that limited citizenship to whites. 

Carrying the opinion of the Chief Justice to its logical 
result, Mr. Justice Curtis showed that it implied the power 
to change our Republic to " an oligarchy, in whose hands 
would be concentrated the entire power of the Federal Gov- 
ernment." 

Against doctrines and conduct so destructive to our free 
institutions, it behooves us all, on this day, solemnly to pro- 
test. On this day again, it behooves us to remember, that 
an injury done to the humblest among us, whatever his color, 
whatever the country of his birth, is an injury done to us all. 

All who believe in natural rights, and all who uphold 
existing things, are here called upon to act. In presence of 
usurpation, it becomes most especially the duty of all con- 
servative men of the country to come forward. 

I honor the conservative who stands the guardian of order, 
of existing rights, and of instituted liberty, and who grace- 
fully yields at last to the progress of an advancing 
civilization. 

Who serves the right, and yields to right uUme. 

But there are some who, calling themselves conservatives, 
conserve nothing, and who yield, not to the advances of 
civilization, but to the encroachments of barbarism ; whose 
whole conservatism is constant concession ; who tell us they 
are " as much opposed to barlmrism as any one," but they 
wouldn't meet it on the field of politics, — " as much opposed 
to crime as any one," but they wouldn't hear a warning voice 
raised against it from the pulpit ; — their politics are too 
pure, their Sunday slumbers too precious, to be disturbed by 
any allusions to such exciting matters as the advances of 
crime. And so they go on, conceding everything, — not to 
civilization, but to barbarism, — not to liberty, but to liber- 



44 



ticide — backing down before evei\y presumptuous aggres- 
sion — down — and down still — until they fall among the 
lost ones whom Dante has descril)ed.* From them there is 
nothing to expect. 

Non ragionain di lor, ma guarda e passa. 

We have, hoAvever, among us some real conservatives, and 
many intelligent and worthy men, who neglect the privileges, 
shall I not say the duties, of citizenship, and who, either 
from indifference or from a false fastidiousness, abstain from 
the polls. To these men I would, on this occasion, specially 
appeal. You complain that your vote is only that of one, 
and that however great your intelligence, however profound 
your learning, it may all be outweighed by the vote of the 
most simple. Here, then, is an opportunity for effective 
action ; hero is the occasion foreseen by the sagacious Story 
when he })laced the security against a trespass by the 
Supreme Court upon the known principles of law, in the 
intelligence, the integrity, the learning, and the, manliness of 
the country, which would keep watch upon its proceedings. 

Here you may exercise your knowledge, and the influence 
which it may carry with it. Bring that knowledge and 
influence to bear upon the judges who have acquiesced in that 
deplorable prostitution of their office ; aid them to see the 
error of their ways ; point out to them the fountains of that 
law of which they are the ministers ; draw them gently l)ack 
to an appreciation of those elementary principles of juris- 
prudence, and of judicial action, which seem to have passed 

*" Master, 

"What wretched sonls are these in anguish drowned ? " 

To whicli he answered, " This award severe 
On those unhappy spirits is bestowed 

Of whom nor infamy nor good was known, 
Joined with that Avieked crew which unto God 

Nor false nor faithful, served themselves alone." 

Inferno, Canto III., Parsons' Trans. 



45 



from their memories ; furnish the Chief Justice with a copy 
of the decisions of North Carolina and of the statutes of 
Virginia ;* persuade him to read the history of liis country ; 
tell tliem all, not in anger but in sorrow, of the disastrous 
consequences of their example ; show to them that whatever 
factitious popularity may follow their conduct, the wise and 
the good are not with them, and that — though they may 
have a Senate at their heels ready to print and circulate their 
opinions through the country at the public expense — the 
voices of all the true and enlightened will condemn them in 
the present, and the ^Nluse of History chronicle their names 
in the black catalogue of unworthy judges. 

And if Avith all this you tind them deaf to your remon- 
strances, unwilling to purify the ermine which, confided to 
them, has been draggled and soiled, if, unconscious of 

their foul disfigurement, 



Tliey boast tliemselves more comely thun before, 

you will, at least, have the satisfaction of knowing that you 
have done sometiiing to serve your country. 

But this conduct of the Court, though at first it ma}^ most 
shock the student of history, and the jurist, conversant with 
those principles which through the long struggle between 
arbitrary power and right have been evolved as the guaranties 
of justice between man and man, this usurpation on the part 
of the judiciary comes home to every one ; to the rich as well 
as to the poor ; to the powerful as well as to the Aveak ; to the 



* Particularly the 11th vohuue of "Ilening's Virginia Statutes," where, ou p. 322, 
may be found the law of October, 1783, which repeals that of 1779, limiting citizen- 
ship to whites, and which enacts, " That all free persons, born within the territory of 
this Commonwealth shall be deemed citizens of this Commonwealth." To this might 
be joined the opinion of the learned Judge Gaston, of North Carolina (4 Dev. and Bat. 
20) , cited by Justice Curtis (19 Howard, 573) : "All free persons born within the 
State are horn citizens of the State. It is a matter of universal notoriety, that under 
the Constitution of North Carolina, free persons, without i-egard to color, claimed and 
exercised the franchise." 



46 

wise as well as to the simple ; to the white as Avell as to the 
black. 

To-day liberty is attacked ; to-morrow it may be property. 
Let this be calmly acquiesced in, and no interest however 
respectable, no right however sacred, is safe. In opposition 
to the monstrous conduct of these judges all of us may cor- 
dially unite : in this all shades of party may blend; for no 
party, however strong it may appear, however great the sel- 
fish interests it may suppose to be flattered, no party can 
long bear up under the opprobrium of a measure which tends 
to undermine our institutions ; which destroys the harmoni- 
ous balance of the power delegated by the peoj^le to 
different branches of their government, and leads logically 
on to despotism or to revolution. 

Let us, therefore, all join our eff'orts to restore the purity 
of the judiciary, —to aid to recover its self-respect; and 
having done this, let us prove that our celebration of this day 
is no mere empty show, by honoring the immortal truths of 
the Declaration, and by earnestly endeavoring in the future to 
act up to them. Let us rally around the Constitution of our 
country, which guarantees trial by jury to all, and which, in 
its own words, was "ordained to establish justice, and secure 
the blessings of lil)erty ; " let us drive far tuvay the cor- 
ruption in power, and make Justice and Liberty the per- 
sistent rule of action of our government. 

Then shall we offer an acceptable tribute to the memory of 
those who founded our Republic ; then shall our country 
present a cheering example to other nations struggling with 
oppression; then, true to itself, it shall be stationed. 

Like a beneficent star, for all to gaze at. 

So high anil glowing that kingdoms, far and foreign. 

Shall by it read their destiny. 



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